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Indexed as:

Sharkey v. Canadian Tire Associate Store Ltd. (N.S. Co. Ct.)

Between
Charles Sharkey and Julie Sharkey, Appellants, and
Canadian Tire Associate Store Limited, Respondent
[1990] N.S.J. No. 381
100 N.S.R. (2d) 243
24 A.C.W.S. (3d) 426
Action C.H. No. 71441 and S.C.C.H. No. 19714
Nova Scotia County Court - District Number One
County of Halifax, Nova Scotia
Palmeter Co. Ct. J.
December 11, 1990
Torts -- Negligence -- Elements of negligence -- Duty of care -- Standard of care -- Causation and
remoteness -- Contributory negligence -- Mechanics -- Automobile repair -- Negligent
misrepresentation.
Appeal from a decision dismissing the plaintiff's action in small claims for negligence. The plaintiff
took her vehicle to the defendant automobile repair shop to have new tires installed and to have a
leak in the coolant tubes repaired or replaced. With the exception of the tires, the other requested
repairs could not be done because the defendant did not have the necessary spare parts. The plaintiff
had a problem with the vehicle while driving back home and stopped to call the defendant store for
advice as to what to do. One of the defendant's attendants who had specific knowledge of the
plaintiff's car told her on the phone that it was safe to continuing driving the car. The plaintiff
proceeded to drive the car causing damages that cost $3,303.55 in repairs. The plaintiff's action to
recover damages in negligence was dismissed.
HELD: Appeal allowed in part. The trial judge erred in not finding a duty of care to exist between
the plaintiff and the defendant. However, the plaintiff was 66 per cent contributorily negligent for
not paying attention to danger signal lights on the dash board.
STATUTES, REGULATIONS AND RULES CITED:

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Contributory Negligence Act, R.S.S. 1978, c. C-31, s. 5.

David G. Coles, for the Appellant.
Daniel Cuvelier, for the Respondent.

PALMETER CO. CT. J.:-- This is an appeal by way of Stated Case from a decision of Harold
G.S. Adams, Q.C., an adjudicator of the Small Claims Court of Nova Scotia wherein he dismissed a
claim of the Appellants against the Respondent. The decision is dated June 11th, 1990. I quote from
the facts as found by the learned adjudicator in the Stated Case as follows:
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I found as a fact that the Appellants were the owners of a 1984 Toyota van.
I found as a fact that damage was caused to the engine of the said van as a result
of overheating. This overheating was caused as a result of loss of coolant fluid.
I found as a fact that repairs were carried out to the said van by O'Regan's Toyota
to a total sum of $4,103.94.
I found as a fact that these repairs did not all relate to the damage to the engine
caused by the loss of coolant. There were additional repairs carried out by the
Appellants.
The repairs related solely to the loss of the coolant was the sum of $3,003.55.
The loss of coolant was caused by the rusting of the coolant tubes.
The coolant tubes were rusted to such an extent that they were weeping, that is to
say coolant was seeping from the tubes. It was a slow leak.
I found as a fact that the metal coolant tubes could burst at any time, that is to say
they might last a year or a day.
I found as a fact that the coolant would gradually weep or seep from the metal
tubes to a point where there would be a warning light come on in the dash of the
said motor vehicle. This is a water temperature light.
I found as a fact that it depended how long the vehicle was driven without
coolant in order to cause the damage that was done to it.
I found as a fact that Mr. Sharkey, one of the Appellants, took the vehicle into the
Canadian Tire Corporation Service Centre operated by the Respondent Company
around 7:30 p.m. to 8:00 p.m. and requested that they install snow tires and
check the leak with respect to the coolant in the tubes.
I found as a fact that when Mrs. Sharkey picked up the said vehicle she received
a Canadian Tire Auto Centre Service Form as indicated in Exhibit C-5 which
stated among other things:
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'CB021 REPLACE HEATER HOSE ONE *NOT DONE* TUBING

UNDER VEC. - CHECK?? *NOT DONE*

I found as a fact that Mr. Sharkey had requested that the heater hose be replaced
and also to check the metal coolant tubing under the vehicle.

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I found as a fact that the Appellant, Mr. Sharkey was aware there was a weeping
or a seeping of the coolant fluid from the coolant tubes in the motor vehicle. I
found further as a fact that this leaking had occurred for some time when Mr.
Sharkey looked under the vehicle dampness could be seen on the coolant tube.
I found as a fact that the procedure followed by the Appellant, Mr. Sharkey was
that when the light would come on in the dash of his motor vehicle he would top
up the coolant each time. He topped up the coolant four to five times. I found as a
fact that if the coolant was topped off the light would then go off. In this refilling
of the coolant it would take approximately one-half of a container to replace the
coolant.
Mrs. Sharkey picked up their vehicle on November 21, 1989. She spoke to Mr.
Don Clark who was behind the counter and he advised her they could not fix the
coolant tubes because they didn't have the parts for them. She was advised by this
gentleman that she had to take the vehicle to the dealer to have it repaired.
Mrs. Sharkey proceeded to drive their vehicle home and when she arrived home
she noticed that there was smoke going past her vehicle and coming from her
vehicle.
I found as a fact that she called the Canadian Tire Corporation Centre store and
talked to a lady and also talked to a mechanic.
I find as a fact that this mechanic indicated that when the vehicle was finished
there was a big puddle of coolant on the floor. I found as a fact that he indicated
to her it was all right to drive the vehicle on the telephone.
I found as a fact that Mrs. Sharkey on the same afternoon that she picked up the
vehicle after having spoken to the mechanic, drove towards Burnside and that the
vehicle stopped on the circumferential highway. Mrs. Sharkey does not recall as
to whether or not the temperature light came on at any point in time. She does
remember smoke coming from her vehicle.
I found as a fact that it would take approximately ten to fifteen minutes to drive
to her home from the Canadian Tire Corporation store where she picked up the
vehicle.
I found as a fact that the mechanic's copy of the service form received by Mrs.
Sharkey had the notation on it that the tubing under the vehicle was rotten and
the notation "dealer" was placed beside it. There was no warning placed on the
service form received by Mrs. Sharkey.
I found as a fact that Mr. Gordon West was a licensed mechanic having worked
eleven out of his twelve years experience with the Respondent company. He
observed the leak in the coolant tube and noted that the tubes were rotten. He
observed that the tube was weeping, that is, coolant was coming through the tube
however, this was not a great leak in the coolant tubes. The green liquid coming
out of the tubes was antifreeze.
Mr. West indicated that when the coolant dropped to a certain level the
temperature light would come on. There was no question in Mr. West's mind that
the tubes ought to have been replaced however they could not do so as it was a
dealer part which they did not have for the vehicle. Mr. West also acknowledged
that there was no warning placed on Exhibit C-5 the service form received by
Mrs. Sharkey.

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I found as a fact that Mr. West, the mechanic checked the coolant level in the said
vehicle prior to it being taken and it was up when he checked it.
I found as a fact that the Appellants knew that they had a faulty coolant system
and that the coolant tubes were weeping and that this situation or condition had
existed for some months prior to the damage to their vehicle.
I found as a fact that Mrs. Sharkey when she picked up the vehicle was clearly
told that the coolant tubes were not replaced and that they could not be replaced
as they were dealer parts. She was also advised that the heater hose was not
replaced as well for the same reason.
I found further as a fact that Mrs. Sharkey noticed smoke coming from the
vehicle when she drove it home.
I found further as a fact that the Appellants could not rely upon the mechanic that
she talked to over the telephone. Mr. and Mrs. Sharkey were quite aware that
they had a coolant problem with their vehicle and that this condition had existed
for some time. There was no evidence placed before me that there was no prior
damage done to the engine, prior to taking it to the Respondent's store.
Mrs. Sharkey was specifically advised that the repairs could not be done by the
Respondent.
There was no evidence before me that there was a sudden break in the coolant
line so as to cause the damage.
Mrs. Sharkey does not recall as to whether or not the temperature of the coolant
light came on to indicate a dangerous situation when she drove the vehicle home
or after speaking to the mechanic of the Respondent.
There was no evidence before me to indicate that the water temperature light was
working improperly and therefore the conclusion reached was that it was in fact
working properly on the day that the engine was damaged.
Mrs. Sharkey noted that there was smoke coming from the vehicle knowing that
the coolant tubing had not been replaced or repaired by the Respondent and
knowing that the coolant had to be topped from time to time I found as a fact that
it was unreasonable at this point in time to rely upon a statement made over the
telephone by a mechanic, that it was 'fine to drive her vehicle'.
There was no evidence before me that Mrs. Sharkey spoke to Mr. West the
mechanic who actually worked on her vehicle but merely to one of the mechanics
of the Respondent company.
In light of the aforesaid facts I found that it would be unreasonable for the
Claimants to rely upon the statement made by the mechanic Mrs. Sharkey spoke
to over the telephone in the light of the existing circumstances.
I found as a fact that the Respondent company did not permit to be caused loss of
coolant when the vehicle was on its premises and therefore was not liable under
bailment.
I found further as a fact that the Respondent company filled up the coolant prior
to the vehicle leaving its premises.
Accordingly, I dismiss the Appellants' claim without costs." The decision of the
adjudicator is being appealed on the grounds that it is erroneous in law, that point
of law being whether or not the action of the Respondent, its servants or agents
constituted negligence giving rise to liability under the common law of torts.

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ELEMENTS OF A NEGLIGENT ACTION AT COMMON LAW

There are four elements to the test for negligence. (i) Is the defendant under any legal obligation
or duty to exercise care for the plaintiff's interests in the type of case under consideration? See
Donoghue v. Stevenson, [1932] A.C. 562. The existence of a duty of care is a question of law, not
fact. See Fleming, The Law of Torts, 6th ed. (1983), at p. 130. (ii) Once the duty is established, one
must then determine the standard of care expected of the defendant and whether or not it has been
breached. See Arland v. Taylor [1955] 3 D.L.R. 358 (Ont. C.A.); (iii) It is then incumbent upon the
plaintiffs to establish causation, that is was the defendant's breach which caused their loss before
liability can be imposed, Palsgraf v. Long Island Railroad Co., [1928] 162 N.E. 99, 248 N.Y. Supp.
(C.A.) and McGhee v. National Coal Board., [1972] 3 All E.R. 1008 (H.L.). (iv) Finally, the court
must decide whether or not the loss suffered by the plaintiff is too remote to warrant recovery by the
plaintiff. Negligence liability is limited to foreseeable losses in most cases. See: Re. Polemis and
Furness, Withy & Co., [1921] 3 K.B. 560 (C.A.) and Overseas Tankship (U.K.) Ltd. v. Morts Dock
& Engineering Co. [1961] 1 All E.R. 404 (P.C.).
THE NEGLIGENCE OF THE RESPONDENT
The Respondent carries on the business of automobile repair in Dartmouth, Nova Scotia in
conjunction with its retail business. It holds itself out as a specialist in automobile repair. The
Appellants took their vehicle to the Respondent to have new tires installed as well as to have a
heater hose and a leak in the coolant tubes repaired or replaced. With the exception of the tires, the
other requested repairs to the vehicle could not be completed because the Respondent did not
possess the "dealer parts" necessary to replace either the heater hose or the coolant tubes.
The issue in this appeal centers upon the events that occurred after the Appellant left the
Respondent's facility with the vehicle. On the way home, the Appellant noticed smoke coming from
the vehicle. She then proceeded to phone the Respondent to seek advise as to how she should
proceed. The mechanic of the Respondent who took the call, although it was not the same mechanic
who worked on the vehicle, expressed specific knowledge of the Appellant's vehicle and the
problems it had. To this end, the mechanic indicated that "when the vehicle was finished, there was
a big puddle of coolant on the floor". These comments by the mechanic gave rise to a duty of care
between himself and the Appellant. This relationship was more that a casual one between an
anonymous caller and a mechanic, for the mechanic, servant of the Respondent, expressed specific
knowledge of the Appellant vehicle and the problem facing her.
The standard of care the Respondent is required to meet and the factors constituting its breach are
also questions of law. A mechanic is expected to use all reasonable care consistent with that of his
particular knowledge, consistent with that which a reasonable person in the same position would
exercise. See Challand v. Bell (1959) 18 D.L.R. (2d) 150 (Alta. S.C.). To this end the mechanic had
to take into account the likelihood of damage occurring as a result of his advise, as well as the
gravity of the consequences should such damage result.
By advising the Appellant to drive her vehicle, without taking precautions in the face of the
evidence before him of the possible loss that could arise, the mechanic breached the standard of care
expected of him at common law.
Relying on the advise given by the Respondent, the Appellant proceeded to continue to drive her
vehicle from her home, towards Burnside, soon after which, the vehicle stopped because the engine
had overheated. Repairs to the vehicle as a result of the overheating were $3,303.55.

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The loss suffered by the Appellant in this case was foreseeable given that the Respondent was
fully apprised of the facts surrounding the problems with the Appellants vehicle. Further, a
mechanic should be expected to understand the most basic of mechanical principles, that an engine
will overheat in the absence of coolant.
With deference, I find that the learned adjudicator made an error in law in not finding that a duty
of care had arisen between the Respondent and the Appellants, and that he further made an error in
law in failing to find that the actions of the Respondent, at least in part, were responsible for the loss
of the Appellants.
CONTRIBUTORY NEGLIGENCE OF THE APPELLANTS
Contributory negligence is a plaintiff's failure to meet the standard of care to which he is required
to conform for his own protection, and which is a legally contributing cause, together with the
defendant's default, in bringing about their loss. See Fleming, The law of Torts 5th ed., The Law
Book Company, Sydney, 1977, at p. 251.
In addition to finding the Respondents negligent, it is further my opinion that the Appellants were
contributorily negligent, and as such are responsible as well for the losses they have incurred. It was
clear in the facts as found by the Adjudicator that the Appellant had not paid attention to the dash
indicator/warning light that would have warned the female Appellant that the engine was losing too
much coolant and, in fact, was overheating, given the finding of fact that the indicator light was
working at the time of the engines overheating. Since the Appellants had paid attention to the
indicator light on previous occasions, I would conclude that their failure to exercise reasonable
caution in this instance contributed to their loss.
APPORTIONMENT OF FAULT
Under Section 5 of the Contributory Negligence Act, the amount of damage or loss and the
degrees of fault in cases are deemed to be questions of fact. Normally, this case would be sent back
to the adjudicator for an apportionment of fault and damages, however, the facts as found by the
adjudicator are sufficient to enable this court to make a determination.
Accordingly, I find the apportionment of fault for the damages incurred are as follows:
Appellants
Respondent

66 2/3 %
33 1/3 %

The appeal will, accordingly, be allowed and the Appellants will recover the Respondent the sum
of $1,001.17 together with the costs of this appeal in the amount of $50.00.
PALMETER CO. CT. J.

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